All Change 2: Learning to Love the Mental Capacity Act

Okay, this is the second instalment of “All Change”, our serialisation on the subject of the new mental health laws. This time around a little detour away from the Mental Health Act to look at the other new set of mental laws that are shaking things up at the moment: the new Mental Capacity Act.

In particular, I want to show you all how the Mental Capacity Act can be appreciated, respected, even…dare one say it…loved.

What? What are you all doing, stampeding out through the door? Come back, goddammit! I’ll turn you into a bunch of law geeks if it’s the last thing I do!

But please, I can see I’m losing some of you here, so please indulge me for a moment in my law geekery, and read on…

To show why the Mental Capacity Act truly is awesome, let me introduce you to the five principles that underpin it. In particular it’s Principle 3 that gets me excited.

Principle 1: ‘A person must be assumed to have capacity unless
it is established that he lacks capacity.’ (section1(2))

And I should bloody well hope so too! A principle that should be fairly obvious. Moving on fairly quickly…

Principle 2: ‘A person is not to be treated as unable to make a
decision unless all practicable steps to help him to do so have
been taken without success.’ (section1(3))

This one also comes under the ” I should bloody well hope so too” heading. If you have a deaf patient, you can’t simply make decisions on their behalf just because you can’t be bothered to bring in a sign language interpreter.

Principle 3: ‘A person is not to be treated as unable to make a
decision merely because he makes an unwise decision.’ (section 1(4))

Aha! Now this one is the motherlode, the one that makes me love dearly our new Mental Capacity Act. Nosey neighbours, interfering relatives, nanny-state politicians…read those words, “A person is not to be treated as unable to make a decision merely because he makes an unwise decision”….and WEEP! Because if we want to stick a sculpture of a shark on our roof…..WE CAN! If we want to run down the street with our underpants on our head (and let’s face it, who doesn’t from time to time)…WE CAN! If we want to walk into a paratroopers mess and loudly announce that only fairies have wings…WE CAN!

It’s enshrined in the statute books. Every true-blue British man and woman’s right to behave like a berk. It’s the law now. Hurrah!

Principle 4: ‘An act done, or decision made, under this Act for or
on behalf of a person who lacks capacity must be done, or made,
in his best interests.’ (section 1(5))

In other words, if you have to make a decision for someone without capacity, you have to do it for their benefit, not yours. Quite right too, but still not as awesome as Principle 3.

And finally…

Principle 5: ‘Before the act is done, or the decision is made,
regard must be had to whether the purpose for which it is
needed can be as effectively achieved in a way that is less
restrictive of the person’s rights and freedom of action.’ (section 1(6))

This one is also known as the “principle of least restriction”. Fairly self-explanatory. If there’s more than one way to achieve the goal on behalf of the person without capacity, you choose the one that restricts them the least.

But just to reiterate, it’s Principle 3 that really gets my patriotic juices squirting. The right to make an unwise decision. If you’ll all excuse me now, I’m off to rollerblade through my town centre dressed as a chicken while yodelling. Why? Because it’s my enshrined-in-the-Mental-Capacity-Act right to do so! God bless Britain!

This just goes to show that just as a stopped clock shows the right time twice a day, even Nude Labour occasionally achieve something good and worthwhile.

HUZZAH!